State of New York

Supreme Court, Appellate Division

Third Judicial Department
Decided and Entered: May 3, 2018 525242
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In the Matter of ADIRONDACK

HISTORICAL ASSOCIATION,
Petitioner,
v MEMORANDUM AND JUDGMENT

VILLAGE OF LAKE PLACID/LAKE

PLACID VILLAGE, INC.,
Respondent.
________________________________

Calendar Date: March 27, 2018

Before: Egan Jr., J.P., Lynch, Devine, Clark and Mulvey, JJ.

__________

McPhillips, Fitzgerald & Cullum, LLP, Glens Falls (Eric C.

Schwenker of counsel), for petitioner.

E. Stewart Jones Hacker Murphy LLP, Troy (Patrick L. Seely

Jr. of counsel), for respondent.

__________

Mulvey, J.

Proceeding initiated in this Court pursuant to EDPL 207 to

review a determination of respondent condemning two parcels of
petitioner's real property for the purpose of constructing a
parking garage in connection with a redevelopment project.

In 2017, the Lake Placid Village Board of Trustees

(hereinafter the Village Board) began consideration of a plan to
redevelop Main Street in the Village of Lake Placid, Essex
County. The plan, described as the "Lake Placid Main Street
Reconstruction Project," included the acquisition of two vacant
parcels of real property owned by petitioner, a not-for-profit
corporation, located at 2476-2478 Main Street (hereinafter the
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subject property) for the purpose of constructing a public

parking garage. The Village Board thereafter reviewed the
environmental impacts associated with the redevelopment project
under the State Environmental Quality Review Act (see ECL art 8
[hereinafter SEQRA]) and adopted a negative declaration of
environmental significance in February 2017.

After attempts by the Village Board to negotiate the

purchase of the subject property proved unsuccessful, respondent
opted to proceed with acquisition under the authority of the
Eminent Domain Procedure Law. As a result, the Village Board
engaged in a new SEQRA process specifically with regard to the
proposed condemnation. Following a public hearing and a written
comment period, and upon review of an environmental assessment
form (hereinafter EAF) prepared by an engineering consultant, the
Village Board determined that the action would not create the
potential for any negative environmental impacts and issued
resolutions authorizing condemnation of the subject property.
Petitioner thereafter commenced this proceeding challenging the
Village Board's determination.

Initially, we reject petitioner's contention that the SEQRA

review process was impermissibly segmented. Segmentation is "the
division of the environmental review of an action such that
various activities or stages are addressed [for purposes of
environmental quality review] as though they were independent,
unrelated activities, needing individual determinations of
significance" (6 NYCRR 617.2 [ag]). While there is no question
that condemnation of the subject property for the purpose of
constructing a parking garage was related to the broader Main
Street redevelopment project, it is equally clear that the
segmented review that occurred here was not impermissibly
undertaken "for the purpose of circumventing the detailed review
called for under SEQRA" (Matter of Forman v Trustees of State
Univ. of N.Y., 303 AD2d 1019, 1020 [2003] [internal quotation
marks and citation omitted]; see Matter of Saratoga Springs
Preserv. Found. v Boff, 110 AD3d 1326, 1328 [2013]; Matter of
Friends of Stanford Home v Town of Niskayuna, 50 AD3d 1289, 1290
[2008], lv denied 10 NY3d 716 [2008]). Rather, it took place due
to the fact that the Village Board was unaware of its need to
exercise its power of eminent domain to condemn the subject
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property at the time of its SEQRA review with respect to the

redevelopment project. Inasmuch as the Village Board "'set[]
forth the reasons supporting segmentation and demonstrate[d] that
such review is clearly no less protective of the environment'"
(Matter of Defreestville Area Neighborhoods Assn. v Town Bd. of
Town of N. Greenbush, 299 AD2d 631, 634 [2002], quoting 6 NYCRR
617.3 [g] [1]), we are satisfied that impermissible segmented
review did not occur here (see Matter of Saratoga Springs
Preserv. Found. v Boff, 110 AD3d at 1328; Matter of Friends of
Stanford Home v Town of Niskayuna, 50 AD3d at 1291; Matter of
Concerned Citizens for Envt. v Zagata, 243 AD2d 20, 22 [1998], lv
denied 92 NY2d 808 [1998]; compare Matter of J. Owens Bldg. Co.,
Inc. v Town of Clarkstown, 128 AD3d 1067, 1068-1069 [2015]).

We do agree, however, with petitioner's contention that the

record fails to establish that the Village Board took the
requisite hard look at potential traffic implications associated
with the construction of a parking garage on the subject property
or to set forth a reasoned elaboration of the basis for its
determination that the development of the property would not
result in any substantial increase in traffic. Upon review of an
eminent domain proceeding, courts are required to determine
whether the condemnor's findings and determinations comply with
ECL article 8, which is incorporated as part of the required
procedures under EDPL article 2 (see EDPL 207 [C] [3]; Matter of
Davis Holding Co., LLC v Village of Margaretville, 55 AD3d 1101,
1103-1104 [2008]; Matter of Stefanis v Village of Fleischmanns,
43 AD3d 581, 583 [2007]; Matter of Board of Coop. Educ. Servs. of
Albany-Schoharie-Schenectady-Saratoga Counties v Town of Colonie,
268 AD2d 838, 839 [2000]). In assessing compliance with the
substantive mandates of SEQRA, we are tasked with reviewing the
record to determine whether the Village Board, as the lead
agency, "identified the relevant areas of environmental concern,
took a hard look at them, and made a reasoned elaboration of the
basis for its determination" (Matter of Jackson v New York State
Urban Dev. Corp., 67 NY2d 400, 417 [1986] [internal quotation
marks and citation omitted]; see Matter of Gernatt Asphalt Prods.
v Town of Sardinia, 87 NY2d 668, 688 [1996]; Matter of WEOK
Broadcasting Corp. v Planning Bd. of Town of Lloyd, 79 NY2d 373,
381 [1992]; Matter of City of Mechanicville v Town of Halfmoon,
23 AD3d 897, 900 [2005]). "Literal compliance with both the
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letter and spirit of SEQRA is required and substantial compliance

will not suffice" (Matter of Board of Coop. Educ. Servs. of
Albany-Schoharie-Schenectady-Saratoga Counties v Town of Colonie,
268 AD2d at 840 [internal quotation marks, brackets and citations
omitted]; see Matter of Dawley v Whitetail 414, LLC, 130 AD3d
1570, 1571 [2015]).

Because acquisition of the subject property was considered

an unlisted action, a short form EAF was prepared (see 6 NYCRR
617.6 [a] [3]). The Village Board was thus required to "review
the EAF, the criteria contained in [6 NYCRR 617.7 (c)] and any
other supporting information to identify the relevant areas of
environmental concern; . . . thoroughly analyze the identified
relevant areas of environmental concern to determine if the
action may have a significant adverse impact on the environment;
and . . . set forth its determination of significance in a
written form containing a reasoned elaboration and providing
reference to any supporting documentation" (6 NYCRR 617.7 [b]
[2], [3], [4]). An adverse change in traffic levels is such a
potential area of environmental concern (see 6 NYCRR 617.7 [c]
[1] [i]).

During both the public hearing and the written comment

period, concerns regarding increased traffic congestion and other
potential traffic impacts associated with the proposed
condemnation were repeatedly voiced. Yet, the record is bereft
of any evidence that the Village Board took the requisite hard
look at these potential traffic implications. Indeed, the sum
total of the proof of the Village Board's "hard look" is its
negative response to the question on the EAF as to whether there
would be a substantial increase in traffic above present levels –
made without articulating a reasoned elaboration for the basis of
such determination – and the wholly conclusory statement in its
resolution that "[t]here is no significant environmental impact
that could not be mitigated with reasonable measures."1 While

1
At oral argument, counsel for respondent conceded that
this record is silent as to an analysis of traffic impacts,
either as part of its "hard look" or with respect to a "reasoned
elaboration" of its negative declaration in the EAF.
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respondent claims that an adequate review of the environmental

impacts associated with the proposed construction of the parking
garage occurred during the Village Board's review of the broader
Main Street redevelopment project, without record evidence of any
such prior review, there is no indication "of any meaningful
investigation into this area of environmental concern" (Matter of
Kittredge v Planning Bd. of Town of Liberty, 57 AD3d 1336, 1337-
1338 [2008]). In light of this, and given the wholesale failure
on the part of the Village Board to set forth a record-based
elaboration for its conclusion that the identified traffic
concerns were not significant, the SEQRA findings and
determinations made in connection with the condemnation of the
subject property must be vacated (see Matter of Baker v Village
of Elmsford, 70 AD3d 181, 190 [2009]; Matter of Kittredge v
Planning Bd. of Town of Liberty, 57 AD3d at 1338; Matter of Fleck
v Town of Colden, 16 AD3d 1052, 1054 [2005]; Matter of Board of
Coop. Educ. Servs. of Albany-Schoharie-Schenectady-Saratoga
Counties v Town of Colonie, 268 AD2d at 840; Matter of Niagara
Mohawk Power Corp. v Green Is. Power Auth., 265 AD2d 711, 712
[1999], appeal dismissed 94 NY2d 891 [2000]; Matter of West
Branch Conservation Assn. v Planning Bd., Town of Ramapo, 177
AD2d 917, 918 [1991]).

Petitioner's remaining contention has been rendered

academic by our determination.

Egan Jr., J.P., Lynch, Devine and Clark, JJ., concur.

ADJUDGED that the determination is annulled, with costs,

and petition granted.

ENTER:

Robert D. Mayberger
Clerk of the Court